Ex-Justice Stevens explains death penalty stance

WASHINGTON – Retired Supreme Court Justice John Paul Stevens has amplified the reasons for his late-career change of heart about the death penalty, explaining at length why he moved from being a key vote to reinstate capital punishment in 1976 to his belief that the death penalty is unconstitutional.

In an essay in the New York Review of Books, Stevens says changes in the composition of the court brought more conservative justices who engaged in "regrettable judicial activism" to overrule earlier decisions that he says made application of the death penalty fairer and rarer. Stevens made a similar argument about changes in personnel in a key campaign finance case in January.

But the essay, first reported by The New York Times, glosses over Stevens' own differences with the more liberal justices William Brennan and Thurgood Marshall, who opposed capital punishment without exception and warned 35 years ago that its resumption after a roughly decade-long hiatus would pose many of the problems Stevens says have come to pass.

Stevens, who retired in June after nearly 35 years on the court, first expressed his view in 2008 that the death penalty is unconstitutional because of concerns that it is used in a racially discriminatory way and risks executing the innocent.

"I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment,'" he said in an opinion concurring with a decision to reject a challenge to lethal injections in Kentucky. He quoted then from former Justice Byron White.

In the new essay, a review of a book about capital punishment, Stevens describes some of the problems with the death penalty.

He points to the court's decision in 1991 to allow testimony from the survivors of murder victims in the sentencing phase of a capital trial, overruling a 4-year-old decision forbidding it.

Two justices in the first majority retired in the interim and their successors reversed course. Stevens calls the new justices' votes "regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions."

The curious aspect of his assertion is that one of those justices was David Souter, who in time became a reliable partner of Stevens' in siding with death row inmates and seeking to limit application of the death penalty.

He also pointed to a 5-4 decision in 1987 upholding use of the death penalty in Georgia despite statistics showing people whose victims were white far more likely to be sentenced to death than when the victims were black.

"That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings," Stevens writes.

Stevens said former Justice Potter Stewart would have voted the other way had he been on the court and noted that Justice Lewis Powell, who was part of the majority in favor of Georgia, later said he regretted his vote.

His essay appeared Sunday on the New York Review of Books website and was scheduled to be published in the Dec. 23 issue.